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FRANCIS J. CATANIA v. HANOVER INSURANCE CO. AND CHARLES A. HARAD. APPEAL CHARLES A. HARAD (11/28/89)

filed: November 28, 1989.

FRANCIS J. CATANIA
v.
HANOVER INSURANCE CO. AND CHARLES A. HARAD. APPEAL OF CHARLES A. HARAD, APPELLANT



Appeal from the Order entered October 18, 1988, Court of Common Pleas, Chester County, Civil Division at No. 87-00869.

COUNSEL

H. Robert Fiebach, Philadelphia, for appellant.

Garland D. Cherry, Sr., Media, for Catania, appellee.

Beck, Johnson and Melinson, JJ. Beck, J., concurs in the result.

Author: Johnson

[ 389 Pa. Super. Page 145]

Charles A. Harad appeals from an Order denying his Petition for Leave to Amend Answer and New Matter. On this appeal, we address whether a public figure must prove actual malice to recover under the Dragonetti Act, 42 Pa.C.S. §§ 8351-8354, for alleged reputational harm based upon false statements made in an Answer, New Matter and Cross-complaint filed in the court of common pleas. Finding that actual malice is not required, we affirm the order of the court below denying Harad's petition.

This matter arises out of two prior actions commenced by Francis J. Catania, President Judge of the Delaware County Court of Common Pleas, against the Hanover Insurance Company for damage to his automobile. The first action (Catania I) involved a claim by Catania under a Hanover insurance policy to recover the cost of repairing damage to his automobile. While Catania I was pending, Catania commenced a second action against Hanover (Catania II) wherein he sought compensatory, punitive and treble damages, together with counsel fees and costs against Hanover

[ 389 Pa. Super. Page 146]

    for alleged fraud and violations of the Unfair Insurance Practices Act as a result of Hanover's refusal to pay the insurance claim which was the subject of litigation in Catania I.

Hanover filed Preliminary Objections to the complaint in Catania II, alleging that plaintiff failed to state a claim on which relief could be granted. The court granted Hanover's Preliminary Objections in part and dismissed plaintiff's claim under the Unfair Insurance Practices Act. Hanover, who was represented at the time by appellant Harad, then filed an Answer, New Matter and Counterclaim to the remaining allegations in Catania II. In this pleading, Hanover alleged that Catania defrauded Hanover to obtain lower insurance premiums by insuring his automobile under a fleet policy procured by a business operated by Catania's brother.

On May 22, 1985, Harad withdrew his appearance as counsel of record for Hanover in Catania II, and new counsel entered an appearance on behalf of Hanover. On February 13, 1986, the court granted Hanover's uncontested petition to discontinue the counterclaim, without prejudice, and on June 23, 1986, the court granted Hanover's uncontested petition to amend its Answer and New Matter. On June 27, 1986, Hanover filed an amended Answer and New Matter in Catania II, withdrawing the fraud allegations previously asserted.

Judge Catania filed the instant action (Catania III) under 42 Pa.C.S. §§ 8351-8354 alleging that Hanover and its attorney, Harad, committed the tort of wrongful use of civil proceedings as a result of the New Matter and Counterclaim filed in Catania II. Thereafter, Catania and Hanover entered into a settlement of Catania II and III. Catania II was marked "settled, discontinued and ended" and this action was marked "settled, discontinued and ended" as to Hanover. The lower court, by Order dated February 25, 1988, later struck the discontinuance entered in this action as to Hanover and ordered that Hanover participate at trial so that its status as a joint tortfeasor may be determined.

[ 389 Pa. Super. Page 147]

On June 17, 1987, following the disposition of Preliminary Objections to the complaint, Harad filed an Answer and New Matter to the complaint. On July 22, 1987, plaintiff filed a verified reply to Harad's New Matter. Thereafter on March 16, 1988, Harad filed a petition for leave to amend his Answer and New Matter to raise defenses based upon the standard of proof set forth in the United States Supreme Court's decision in Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). On October 18, 1988, the Honorable Charles B. Smith entered an Order with an accompanying Opinion ...


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